Georgia’s Supreme Court brings back state’s 6-week abortion ban

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Louise Thomas

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The Georgia Supreme Court on Monday halted a ruling striking down the state's near-ban on abortions while it considers the state's appeal.

The high court's order came a week after a judge found that Georgia unconstitutionally prohibits abortions beyond about six weeks of pregnancy, often before women realize they're pregnant. Fulton County Superior Court Judge Robert McBurney ruled Sept. 30 that privacy rights under Georgia's state constitution include the right to make personal healthcare decisions.

The state Supreme Court put McBurney's ruling on hold at the request of Republican state Attorney General Chris Carr, whose office is appealing the judge's decision.

In a dissenting opinion, Justice John J. Ellington argued that questions about the constitutionality of the ban “should not be predetermined in the State's favor before the appeal is even docketed.”

“The State should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution,” Ellington wrote. “The `status quo' that should be maintained is the state of the law before the challenged laws took effect.”

Clare Bartlett, executive director of the Georgia Life Alliance, called high court's decision "appropriate,” fearing that without it, women from other states would begin coming to Georgia for surgical abortions.

“There’s no there’s no right to privacy in the abortion process because there’s another individual involved,” Bartlett said. She added: “It goes back to protecting those who are the most vulnerable and can’t speak for themselves.”

Georgia's law, signed by Republican Brian Kemp in 2019, was one of a wave of restrictive abortion measures that took effect in Republican-controlled states after the U.S. Supreme Court overturned Roe v. Wade in 2022 and ended a national right to abortion. It prohibited most abortions once a “detectable human heartbeat” was present. At around six weeks into a pregnancy, cardiac activity can be detected by ultrasound in an embryo’s cells that will eventually become the heart.

The Georgia Supreme Court's one-page order Monday exempted one specific provision of the state's abortion law from being reinstated.

With no explanation, the court said the state can't enforce a subsection of the law that reads: “Health records shall be available to the district attorney of the judicial circuit in which the act of abortion occurs or the woman upon whom an abortion is performed resides.”

Thirteen U.S. states are now enforcing bans on abortion at all stages of pregnancy and four ban abortions around the sixth week of pregnancy.

McBurney wrote in his ruling that “liberty in Georgia includes in its meaning, in its protections, and in its bundle of rights the power of a woman to control her own body, to decide what happens to it and in it, and to reject state interference with her healthcare choices.”

“When a fetus growing inside a woman reaches viability, when society can assume care and responsibility for that separate life, then — and only then — may society intervene,” McBurney wrote.

The judge's decision rolled back abortion limits in Georgia to a prior law allowing abortions until viability, roughly 22 to 24 weeks into a pregnancy.

“Once again, the will of Georgians and their representatives has been overruled by the personal beliefs of one judge,” Kemp said in a statement in response to McBurney's decision. “Protecting the lives of the most vulnerable among us is one of our most sacred responsibilities, and Georgia will continue to be a place where we fight for the lives of the unborn.”

Abortion providers and advocates in Georgia had applauded McBurney's ruling, but expressed concern that it would soon be overturned.